A TRAVESTY OF FAIRNESS: YOUR WARD NEWS, CANADA POST, AND THE CPCA REVIEW BOARD

A TRAVESTY OF FAIRNESS: YOUR WARD NEWS, CANADA POST, AND THE CPCA REVIEW BOARD

POSTED MARCH 1, 2019
BY JAMIE CAMERON

Senseless and grotesque

Your Ward News (YWN) is a publication of unremitting offensiveness – in truth it is little more than a senseless and grotesque cartoon. Yet that is largely beside the point under the Charter. Though it took time and a concerted campaign by those offended by YWN’s existence, the law’s force was eventually brought to bear on its publishers. On May 26, 2016, the Minister of Public Works issued an Interim Prohibitory Order (IPO) under s.43(1) of the Canada Post Corporation Act (CPCA). This order banned YWN’s publishers, James Sears and Laurence Ste. Germaine, from using Canada’s postal service for all purposes, including the likes of letters to an MP, bill paying, and holiday cards. On January 24, 2019 – some 2½ years later – Sears and Ste. Germaine were convicted under the Criminal Codeon two counts of promoting hatred, respectively, against women and Jews.

The criminal prosecution and IPO directly engaged the constitutional rights of YWN’s publishers under s.2(b) of the Charter of Rights and Freedoms. While procedural protections are embedded in the criminal process, the CPCA provides little more than gossamer fairness to anyone who challenges an IPO. Quite apart from the ban itself, the s.2(b) rights of Sears and Ste. Germaine were severely compromised by the CPCA process of review.

Intolerating freedom

In principle, s.2(b) protects all expressive activity, no matter how offensive or repulsive, as the very concept of freedom would be meaningless under any other view. Yet s.2(b) is too often a guarantee in name only: in practice, Canada’s democratic community shows scant tolerance for those who hold objectionable views and spread objectionable messages. Ironically, the community’s intolerance of such views fundamentally reflects an intolerance of freedom itself.

Instead, freedom demands and rests on an ethic of democratic humility, which can be thought of as a form of resistance to righteousness and a willingness to let unpopular others think, speak, and challenge, even and especially in radical ways or tones of voice. Regrettably, this virtue – both historically and at present – is in short supply.  Rather, those who are feared or disliked are marginalized and their freedom placed in jeopardy.

In all this a vital point in discourse on expressive freedom can sometimes be missed – that freedom is as profoundly threatened by a defective process as by a prior restraint or criminal conviction. The point is well illustrated by the CPCA process.

A chronology of delay

In authorizing the Minister to issue prohibitory orders banning access to Canada Post, the CPCA pays minimal attention to process values. In this instance, neither the Minister nor the YWN Review Board was under any statutory imperative to comply with standards for a fair and timely process. As the Board put it somewhat backwardly, stating that “[t]here is nothing” in the legislation “which would compel the Minister to disregard Charter values when issuing an IPO”.[1]

A person who is subject to an IPO (“affected person”) can request a review of the Minister’s order. Under s. 44 the Minister has a duty to appoint a review board, though not to do so in any fair, timely, or expeditious manner. Here the Minister did not fulfill this duty until December 9, 2016, did not inform Sears and Ste. Germaine of the appointments, and did not announce the Board until January 9, 2017.  The Minister never explained to the Board or the affected persons why it took more than 6 months simply to appoint a panel.

The YWN Review Board held its first hearing on April 25, 2017, about 5 months after being appointed and almost one year after the IPO was issued. The Review Board did not make a decision on preliminary issues until November 2017, did not hear submissions on the IPO until January 2018, and did not submit its Report to the Minister until August 29, 2018. All told, the Board’s review of the Minister’s IPO took almost 21 months to complete.

During this period, YWN’s publishers were under an interim ban not to use Canada’s national public service for any purpose, including those that were indisputably innocent. In addition, Sears and Ste. Germaine were put to the expense of appearing at and defending their constitutional rights in an extended process that granted YWN’s opponents full rights of participation.

Almost 30 months passed from the time the IPO was issued, on May 26, 2016, to November 15, 2018, when the Minister released the Review Board’s Report and issued a Final Prohibitory Order (FPO) banning the publishers from distributing YWN through Canada Post.[2]The key signposts in this chronology of delay are:

May 26, 2016                                Minister’s IPO

June 6 & 9, 2016                           Sears and Ste. Germaine request a review of the IPO

December 9, 2016                        Minister appoints a Review Board

December 16, 2016                       Sears and Ste. Germaine contact the Minister

January 9, 2017                             Minister announces the Review Board

April 25, 2017                               Review Board’s first hearing

August 9 & 10, 2017                    Review Board’s hearing on preliminary issues

November 2, 2017                        Review Board’s decision on preliminary issues

Jan 3, 22-26; Feb 26 2018            Review Board hearings

August 29, 2018                           Review Board Report to Minister

November 15, 2018                      Minister releases Report and issues FPO

Process matters

The YWN Review Board was handicapped from the start. Section 44(1) of the CPCA sets no criteria for panel membership, except to specify that one of three of its members must be a lawyer. Given the gravity of the issues at stake and level of public interest, the panel required expertise or experience in one or more of regulatory decision-making, the criminal law, and Charter of Rights and Freedoms. At the very least, the panel should have been assisted by counsel; had counsel been retained, the YWN Board might have avoided a protracted process and conducted a review that stood on firmer legal and constitutional ground.[3]

The Minister delayed the process by not appointing a Review Board in a timely way and was responsible for other delays and deficiencies. Though required to do so under s.43(1) of the CPCA, at no time did the Minister provide reasons for the IPO. The May 26, 2016 order simply stated that the Minister had reasonable grounds to believe that Sears and Ste. Germaine were using Canada Post to commit criminal offences (i.e. hate propaganda and defamatory libel). The Minister never provided the particulars of YWN issues or content that provided grounds for the IPO.[4]

The Board’s Ruling on Preliminary Issues found that the Minister violated her statutory duty to provide reasons and held that the breach of duty was not cured. At that point, the panel should have terminated the hearing, advised the Minister that her IPO was in breach of the CPCA, and informed her that the order could not legally be sustained.[5]The Board chose instead to deflect the problem, citing fairness to the interested parties – “participants would be denied a voice on topics about which many feel strongly”[6]– and faulting counsel for Sears and Ste. Germaine for changing her position.[7]The Ruling stated that the IPO is a serious matter, noted that the affected persons “are not given any opportunity to address the complaint except under this review process”, and acknowledged that that for the process to be meaningful they should be informed of the particulars of the Minister’s reasonable grounds. Having made those findings, the Board stated that the process would continue nonetheless, because the failure to provide reasons could be dealt with in the final report and recommendations.[8]

From that point on, Sears and Ste, Germaine could not receive a fair hearing. In the absence of reasons, there was no evidence of the grounds the Minister relied on in issuing the postal ban.[9]This made it impossible for the Board to reviewher decision and divine what grounds she could or might have had for ordering the IPO. Parenthetically, the Minister’s failure to provide reasons strongly suggests that she gave no consideration to the constitutional rights of Sears and Ste. Germaine, as she was required to do.[10]

In the absence of reasons or evidence from the Minister, the Review Board allowed interested parties to fill the gap. The Minister’s case for the IPO was made by others who were granted standing to support the IPO, and provided extensive written and oral evidence and submissions throughout. The Report plainly and explicitly relied on that work in concluding that the Ministerhad reasonable grounds to order the IPO.[11]

This unusual turn of events followed from the Review Board’s decision to recognize and grant standing to 16 individuals, 15 interested persons, and 10 community organizations and public interest groups. In this way, a review of the Minister’s decision was transformed into an open forum for YWN’s opponents to dominate the proceedings.

This “big tent” approach to CPCA review contributed to an unwieldy and protracted process. In practice, it imposed a burden on Sears and Ste. Germaine to respond to multiple parties and their interpretation of the criminal law – a burden that would never be imposed on them in a criminal setting. More fundamentally, the Board turned the process on its head, transforming a review of the Minister’s IPO for the benefit of the affected persons into an opportunity for YWN’s opponents to advance their interpretation of the Code’s hate propaganda and defamatory libel provisions.

Absolute ban and prior restraint

Throughout, the scope and gravity of the postal ban was minimized by the Attorney General and third party organizations who maintained that the IPO was not a prior restraint. Their logic was that because YWN could be distributed by other means the Minister’s IPO was not a restraint and did not violate the Charter. Such a claim misunderstands the nature and seriousness of a prior restraint.

Prior restraint is an egregious form of censorship that occurs when the state halts expressive activity, in advance, and to prevent it being communicated. In other words, the exercise of a right is pre-empted or blocked before it can be known whether or not the material – when published or distributed – will be constitutionally innocent or transgressive. The gravamen of prior restraint is an act of censorship by the state, which is exactly what the Minister’s IPO did by prohibiting Sears and Ste. Germaine from all use of the postal service. As a matter of law it was therefore irrelevant that YWN might be distributed elsewhere, like on Malta, the internet, or Mars.

The definition of a prior restraint is well established in law and the issue should not have been contentious.  In the absence of expertise, the Board struggled with it and ultimately hedged, finding that s.43(1) “might” authorize a prior restraint and providing a muffled conclusion that, in the “narrow” context of the postal service, the standard was rigorous to ensure that IPOs are not issued “capriciously”.[12]Note, however, that the legislation presupposes the Minister’s compliance to give reasons.

The Board also found that IPOs are meant to be temporary – though that is not the way s.46’s statutory presumption works – and are subject to comprehensive review – but only when review is requested within 10 days and the Minister sees fit to appoint a panel. Despite those problems, the Board readily concluded that an absolute ban is not unconstitutional as an interim measure, adding that in any case the affected persons could have asked the Minister to consent to exceptions.[13]This, it bears noting, is the same Minister who did not provide reasons, delayed appointment of the review board, and failed to advise the affected persons when a panel was appointed.

Also minimized during the hearing was the severity of the interference with constitutional rights. The Minister’s IPO gratuitously banned Sears and Ste. Germaine from using Canada Post for personal and business purposes unrelated to YWN. Curiously, this issue was deflected to a side discussion of whether the CPCA granted the Minister discretion to narrow the order.[14]Actually, the point does not matter so much. If she had discretion, the IPO gratuitously violated the rights of Sears and Ste. Germaine by denying them all access to Canada Post for almost 30 months. And if not, the IPO was just as damning because the Minister issued an absolute ban without reasons and without apparent regard for the constitutional rights at stake.  Either way the Minister’s IPO was seriously in breach of s.2(b) of the Charter.[15]

More important than a ban on the use of Canada Post was the shabby process that began on May 26, 2016 and did not end until November 15, 2018. This chronology of delay and irregularity is compelling demonstration that, without procedural fairness, the Charter’s guarantee of expressive freedom is little more than a façade or shell. Quite apart from the ban itself, the process surrounding the IPO was a travesty of fairness.

To the Review Board’s credit

The Review Board called attention to the Minister’s unexplained delay in appointing a panel but defended its own process as being beyond reproach.[16]As discussed, the Board made choices and decisions that extended and distorted the review process to the disadvantage of Sears and Ste. Germaine.

To the Board’s credit, the Report recommended that the CPCA be amended or regulations enacted to address some of the statute’s deficiencies. The Review Board’s action items include the time limit for the appointment of a review board, standards of proof (i.e., who has the onus at such hearings), and the remedial powers of the Minister under s.43(1) and 45(3).

A mandate for change

While helpful, the Board’s recommendations reveal a limited grasp of what went wrong in this process.

A primary concern arises from the framework for IPO and FPOs. By statutory presumption, the Minister’s order becomes final ten days after notice of an IPO is sent, without any further steps or process (s.46). In other words, the Minister can conclusively ban – or censor – a person from Canada Post simply by giving notice of the order. There is no right of appeal 10 days after a FPO is issued. Meanwhile, where an “affected person” requests a review of the IPO, the Minister is not required to appoint a review board in a timely manner or within any time frame whatsoever. At a minimum, the statute should require appointment of a review board within a specified time period, and should provide a means of appeal from a FPO.

Problematically, the CPCA provides little or no framework for the review process, leaving it largely to the discretion of an ad hoc panel that might not have adjudicative or subject matter expertise. In appropriate circumstances, it may be necessary and justifiable for the Minister of Public Works to issue an IPO or FPO. Yet the exercise of this rare and draconian power must comply with the rule of law, including standards of procedural fairness. For the Review Board to excuse the Minister’s failure to provide reasons and proceed anyway, granting multiple parties standing to address the core issues, and then decide those issues without evidence from the decision-maker, was manifestly unfair to Sears and Ste. Germaine. Though interim and final prohibitory orders are relatively infrequent under the CPCA, the YWN hearing showed how a process can go awry when an inexperienced panel is required to manage a complex process in the absence of procedural framework or direction.

The CPCA’s provisions on prohibitory orders have not been amended since the Charter was enactedin 1982. These provisions are grossly deficient to manage the administrative and constitutional elements of a review process that in many cases will affect constitutional rights. Tinkering and modest reforms will not be sufficient; what is called for, instead, is an overhaul of the CPCA’s provisions for making prohibitory orders.


[1]Report and Recommendations of Board of Review (Report) at 33 (my emphasis).

[2]Under the FPO, Sears and Ste. Germaine may use Canada Post for personal purposes but are banned from using the postal service to distribute YWN or other “substantially similar” material.

[3]It is rumoured that the Review Board was informally assisted by a law professor; if this is true, it was not disclosed to the parties and is yet another troubling irregularity in this process.

[4]On March 21, 2017, the AG provided the names of individuals who might have been the subject of defamatory libel, and on January 3., 2018, almost 20 months after the IPO, the Attorney General advised that the alleged hate propaganda was against Jews.

[5]The author and CFE took the position throughout that the Minister’s failure to give reasons was a fatal defect and determinative of the proceedings; in the circumstances, we nonetheless participated in the hearing on the constitutional issues.

[6]Ruling on Preliminary Issues at 7.

[7]It is unclear whether the Board misunderstood counsel; even if it was aware of her position that the hearing should be limited to the constitutional issues, the Board would have heard the evidence and submissions on hate propaganda. As the Report declared, “the Board [was] not prepared to limit its report to constitutional issues only”. Report at 11.

[8]Ruling on Preliminary Issues at 6, 7.

[9]Apart from the preliminary issues and constitutional submissions, the Minister did not participate in the proceedings.

[10]See Report at 37 (stating that the absence of reasons was problematic, adding that the Board was not able to determine whether the Minister turned her mind to the issue of balancing Charter values and, if she did, whether she concluded that no balancing was required or intended the IPO to reflect a balancing exercise).

[11]Report at 15-19; 20-22; 44-45; 47.

[12]Report, at 37.

[13]Report, at 38.

[14]The author and CFE took the position that the IPO was a prior restraint and absolute ban; we did not participate in discussion of the Minister’s discretion to narrow the order and offered no view on the issue of statutory interpretation.

[15]The Board incorrectly concluded that the duty to balance Charter values under Dorédid not apply to a blanket ban; the Minister had a duty under the Charter to balance constitutional values whether the IPO imposed an blanket or partial ban on access to postal services.

[16]Report at 13.

Check Out These Weird Tweets by Warren Kinsella, Latest Columnist for Canadian Jewish News

I sat in on the hearing today and was shocked when I got home and read the twitter account of Warren Kinsella and his related tweets from the hearing today. There’s good reason why my editor Dr. James Sears has referred to Mr. Kinsella as a pathological liar.

In his tweets from the hearing room today Kinsella referred to the Board members as “Cranky” and the lawyers who presented briefs today as “Neo-Nazi lawyers” and of course he referred to us as “Neo Nazi’s” and Mr. Paul Fromm as a “white supremacist” as part of his on going campaign to slander and libel the paper and anyone involved with it.

 

I consider Mr. Kinsella’s berating and mocking attitude toward the review process as detrimental and so have decided to send you links to the tweets he sent out today so you can be aware of what he is doing to derail this process.

 

===Lawrence McCurry===

https://twitter.com/kinsellawarren/status/895286057230585856

 

https://twitter.com/kinsellawarren/status/895294476956172290

 

https://twitter.com/kinsellawarren/status/895295791291670529

 

https://twitter.com/kinsellawarren/status/895313970084536320

 

https://twitter.com/kinsellawarren/status/895317885433790464

 

https://twitter.com/kinsellawarren/status/895318415660929025

 

https://twitter.com/kinsellawarren/status/895325153634041856

 

https://twitter.com/kinsellawarren/status/895359369495420928

 

https://twitter.com/kinsellawarren/status/895369437553074177

 

https://twitter.com/kinsellawarren/status/895380886098776066

 

http://warrenkinsella.com/2017/08/panel-reviewing-neo-nazi-rag-screws-up-again/

 

Osgoode Hall Law Prof. Jamie Cameron Attacks Canada Post Ban on YOUR WARD NEWS

Osgoode Hall Law Prof. Jamie Cameron Attacks Canada Post Ban on YOUR WARD NEWS

 
 

 

A TRUE CANADIAN VALUE

Prime Minister Trudeau received plaudits when, on a recent state visit to China, he boasted of Canada’s commitment to free expression, which he presented as a “true Canadian value”. The prime minister exalted “a diversity of ideas, and the free ability to express them” because freedom, he said, is what drives positive change. Perhaps he and others had forgotten that as leader of the Opposition he prohibited anyone opposed to abortion from running for federal office for the Liberal Party. If that was 2014 and this is 2016, there is more. On May 26, 2016, the Minister of Public Services issued an order banning a publication from Canada Post.

Minister Foote’s Interim Prohibitory Order prohibits James Sears (and his agents) from using Canada’s national mail service. On its face, the Order draws no distinction between sending a postcard, paying a bill, and circulating Your Ward News, the publication targeted by the Minister. The authority for that Order is found in s.43, a little known and rarely used provision of the Canada Post Corporation Act (“Canada Post Act”), which allows the Minister to halt the delivery of mail that is connected to the commission of offences.

Under the Canada Post Act, a s.43 Order is presumptively final within ten days. Once the Interim Order is made there is no further process, and the Minister has no burden to justify a ban. In just ten days, the Minister can permanently prohibit a person from using Canada’s mail delivery service without her consent.

It is no secret that Canada Post can be used for a range of criminal purposes. In 2013, the National Post reported that the mail service routinely transports a variety of contraband and illegal goods, including guns, drugs, and even a rocket launcher. This summer, three venomous snakes – mountain pit vipers – were found in a package mailed from China. These revelations may make Canada Post a more dangerous place than most imagine. Spring of 2016 is when the delivery of Your Ward News became dangerous enough to attract the sanction of a prior restraint order.

Presumably the Minister is not interested in Mr. Sears’s postcards or personal mail. Rather, her letter makes clear that the target is Your Ward News and that the purpose of the Order is to take the publication out of circulation.

Your Ward News is reportedly delivered by Canada Post to approximately 305,000 addresses in Toronto, and is self-styled as “the world’s largest anti-Marxist publication”. Admittedly, many would describe it as scurrilous. Proudly and self-righteously offensive, Your Ward News aims at and succeeds in being as offensive as possible from cover to cover.  Its pages glorify Hitler, pillory equality and diversity values, insult visible minorities and other communities, trade in distasteful and marginal sexual content, and vilify public and news figures by name. James Sears is the editor in chief of this publication, whose back issues, incidentally, can be found online.

Householders and postal carriers have complained that Your Ward News intrudes into their safe psychological and physical space. Before the Minister took action, Toronto police had investigated and decided against laying charges under the Criminal Code’s hate propaganda provisions. Meanwhile, in a bid to have delivery of the publication stopped, human rights litigant Richard Warman appealed directly to Minister Foote and Canada Post Corp. In March 2016, Canada Post’s general counsel told Warman that “it is not open to Canada Post to censor the mail”.

Two months later, the Minister exercised her power under s.43 to do just that. Though Canada Post cannot stop Your Ward News from publishing, banning its circulation is censorship just the same, as the corporation’s general counsel acknowledged. Your Ward News is not dangerous like a gun, rocket launcher or snake, but has been banned because it is considered offensive and harmful.

The Minister’s Interim Prohibitory Order is insidious for two reasons: first, it constitutes a prior restraint; and second, it bans Your Ward News from Canada Post without due process of law.  On its face, the Order bans Mr. Sears (and colleagues) from sending any mail, and for that reason alone is overbroad and disproportionate. More to the point, banning a publication in advance, on the basis of assumptions about what future issues might contain, is the most draconian step a state can take to censor unwelcome views.

Essentially, prior restraint attaches a presumption of guilt to words or a publication that are not yet written. This is plainly antithetical to the Charter’s guarantee of expressive freedom, which is based on the opposite principle that expressive freedom is presumptively protected, or innocent in nature, until the contrary is proven. That presumption is not displaced until the state discharges its burden of demonstrating why limits on expressive freedom are justified.

Prior restraint is a heavier and more draconian sanction than subsequent punishment. Where suspicion is warranted, charges can be laid and the criminal justice system can determine the question of innocence or guilt. Prior restraint pre-empts the freedom without a process. The Minister’s Order is a case in point; she has not yet explained her action, much less been held accountable for an Order that manifestly violates the rights of Sears and his colleagues.

It compounds the violation that the Canada Post Act provides little or no due process for anyone named in a s.43 Order. Though it takes effect in 10 days’ time, a Final Prohibitory Order can be forestalled by requesting  a review is requested under s.43(2)(b). The request triggers an obligation on the Minister’s part to appoint a three-member Board of Review to conduct an inquiry (s.44(1)).

The imbalance in these provisions is worth noting. The Canada Post Act allows the Minister to move pre-emptively and remove mail from the system, at her sole discretion and with a presumption of finality. There is no symmetrical timeline requiring her to strike a Board of Review within ten days, or in any time frame at all. Mr. Sears and his colleagues have now been banned from Canada Post for almost four months and the Minister has not yet named a Board of Review, as required.

Once again, there is more. Minister Foote’s letter to Mr. Sears relies on an omnibus statement that she has reasonable grounds to believe Your Ward News includes hate propaganda and defamatory libel. In the absence of particulars, the Minister appears to have acted on an opinion that the publication is generically criminal. Though Mr. Sears has engaged his right to a review and is entitled to appear before the Review Board, it is unclear how and by what process the panel will proceed, when it is eventually named.

Your Ward News is a notorious and unwelcome piece of mail at most addresses where it is delivered. It is probable that many or most care little that it has been banned from the mail. But no one is compelled to look at unwanted mail, and disposing of it places no more than a minimal burden on unwilling recipients.

Canada Post is a service, national in scope, which provides a forum for the circulation of a wide variety of personal, commercial, political, and advocacy materials. Exercising a discretion to decide whether mail should be delivered or to discriminate against mail containing certain points of view is outside the mandate of the postal service and a violation of expressive freedom. Canada Post should not be screening mail and nor should carriers refuse to deliver material they consider objectionable. Most problematic is the Minister’s statutory power to issue peremptory orders which are censorial in nature and not subject to a process of review that is timely and fair.

The Minister’s Interim Order defies the prime minister’s declaration that Canada welcomes diverse ideas and protects the ability to express them freely. It demonstrates that whether in China or Canada the most important lesson must be taught and learned over and over. Once more, it is the freedom of those who hold unpopular and defiant views that matters; they are too often defenceless in the face of dominant, majoritarian views. It may be difficult to understand or accept but paradoxically, our freedom is theirs, and theirs is ours; the two are inseparable.

If freedom of expression is a true Canadian value, then Your Ward News cannot be banned from Canada Post. And it follows that if Your Ward News can be banned, the prime minister’s pronouncements mock a freedom that is not truly, or not yet truly, a “true Canadian value”.